United States v. Ortiz-Arellano

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 2004
• Docket: 03-41114
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-41042 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL ORTIZ-ARELLANO, Defendant-Appellant.

* * * * * * Consolidated with No. 03-41114 * * * * * *

VICTOR MANUEL ORTIZ-ARELLANO, also known as Jose Ramos-Ochoa, also known as Antonio Aguilar-Ochoa,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-153-ALL --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-41042 c/w No. 03-41114 -2-

Victor Manuel Ortiz-Arellano contends for the first time on

appeal that the aggravated felony enhancement found in 8 U.S.C.

§ 1326(b) is unconstitutional under Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). He concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but asserts that Almendarez-Torres has been called into

doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000). See United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). He seeks to

preserve the issue for possible Supreme Court review. The

judgment of conviction is AFFIRMED and the district court’s

judgment for revocation of supervised release is also AFFIRMED.